RBS, contractors and IR35

[northernladuk]

<mod snip>

[JohntheBike]

<mod snip>

well, EAT judgements do set case law and legal eagles are not averse to using old obscure judgements when presenting cases. The RMC case is from 1968 after all.

[northernladuk]

<mod snip> Not useful in the prof forums

I would strongly disagree. Worded poorly by me by taking a pot shot at JtB yes but IMO it's less than useful advice.

Reasons for challenging the comment are..

As pointed out it's in a very unusual case that alone isn't totally representative. He was trying to prove he was an employee (cough), and in our case it's the opposite.
It's ancient and there has been plenty of case law since where it has trumped contract.
Every expert we've had on here speaking about the topic states working practices trump
Nothing JtB wrote points at IR35. It talks about contractual obligation and breach, not the core status of the situation so misleading.
RoS is an odd area anyway with the Ackroyd ignoring it and other case judges claiming it's a sham anyway. It's hardly the best example of a working practice to dismiss WP overriding contracts.

I think it's questionable advice to have on the forum where it is just JtB's experience but there are years evidencing the opposite.

That better?

[JohntheBike]

I would strongly disagree. Worded poorly by me by taking a pot shot at JtB yes but IMO it's less than useful advice.

Reasons for challenging the comment are..

As pointed out it's in a very unusual case that alone isn't totally representative. He was trying to prove he was an employee (cough), and in our case it's the opposite.
It's ancient and there has been plenty of case law since where it has trumped contract.
Every expert we've had on here speaking about the topic states working practices trump
Nothing JtB wrote points at IR35. It talks about contractual obligation and breach, not the core status of the situation so misleading.
RoS is an odd area anyway with the Ackroyd ignoring it and other case judges claiming it's a sham anyway. It's hardly the best example of a working practice to dismiss WP overriding contracts.

I think it's questionable advice to have on the forum where it is just JtB's experience but there are years evidencing the opposite.

That better?

" it's in a very unusual case that alone isn't totally representative"
I never claimed it was.

"He was trying to prove he was an employee"

absolutely wrong. I was trying to prove the exact opposite and I had to present a reasonable case so as to neutralise any claim by HMRC that the case was construed to affect IR35. And what I proved is that a BOS with no ROS could not be judged an employee, disguised or otherwise, and in that endeavour, it showed the fallacy of IR35.

"It's ancient"

and so is the RMC case. If you read my post more carefully, I pointed out that legal eagles delight in referring to old obscure cases when presenting their cases. So it just might affect the judgement in another case.

"I think it's questionable advice"
I wasn't giving advice, just demonstrating that in at least one case, i.e. mine, the contract trumped the actual reality of the engagement and the judge actually said this in his summing up. So, it's not beyond the bounds of imagination that it could happen again.

I'm not one to say something will never happen.

Laws remain in place unless repealed or are effectively overtaken by events. Case law might move on, but cannot reverse previous case law.

I learned only today that the law which allowed the right of conquest for an individual to rule this country was only repealed in the 1920's. Henry VII used the law to usurp Richard III.

[jamesbrown]

Could you guys just agree to ignore each other or summat?

[JohntheBike]

Could you guys just agree to ignore each other or summat?

possibly, however, he seems to delight in abusing me verbally at every opportunity and this tells me that I'm irritating him. So it's up to him really. My opinions are just as valid as anyone else's here. He makes some very dubious claims as to what I've done or have tried to do and all I'm doing is to relate my experiences, however they might be contrary to his opinions.

[webberg]

At risk of stirring the pot, I'll add a thought or two.

Modern case law on IR35 status is very much driven by the role, the way it's done and what actually happens day to day.

The manner in which all of that is encompassed into a contract is not really looked at unless some issue arises which is almost wholly legalistic in nature and therefore usually something of an outlier.

In particular the right of substitution has been viewed in recent cases as a matter to be considered ONLY where the right exists and is likely to be used. In instances where the right exists but in all practical senses is just window dressing (Ackroyd) it has carried very little weight.

Unlike MOO which HMRC know is a far more likely matter to arise day to day and which they have therefore chosen to leave out of CEST as it would push far more decisions to the "outside IR35" end of the spectrum.

Use of CEST is however not (yet) mandatory and any sensible review of a potential inside/outside IR35 decision would inevitably include MOO.

That review would include all the TAX cases in which core principles were discussed and/or established. This is because IR35 is a TAX decision based in TAX law which is now very old and as such has a number of ancient cases which remain good law. Cases which are "bespoke", i.e. have a very particular set of circumstances, or which were not heard in a TAX hearing carry significantly less weight.

So a case from long ago, with special circumstances, in a non tax hearing, are interesting perhaps but are otherwise distracting and largely irrelevant in most circumstances and post April 17 became more so.

I absolutely understand that its comfortable discussing something we are all very familiar with but we are moving into new times and new thinking is required, because HMRC will be looking to cherry pick cases to achieve a "success" for the reform and leaning on old and off topic cases heard outside the tax arena is a recipe for arriving at the wrong answer.

In particular, Mr JohntheBike, we have now heard how your case remains in your view a potential route for some, in special circumstances, to add to the discussion with an end client about status for tax purposes. If I were a contractor I would be wary of telling an end client that if they decided I was inside IR35, I might go to an Employment Tribunal. If I were an end client and was told this, I think I would not be offering the post to that contractor.

The point here however, is that we've heard your view, we all agree that in some special cases it has relevance, we all agree that there are better TAX cases out there to use.

Can we all now move on - please?

[JohntheBike]

At risk of stirring the pot, I'll add a thought or two.

Modern case law on IR35 status is very much driven by the role, the way it's done and what actually happens day to day.

The manner in which all of that is encompassed into a contract is not really looked at unless some issue arises which is almost wholly legalistic in nature and therefore usually something of an outlier.

In particular the right of substitution has been viewed in recent cases as a matter to be considered ONLY where the right exists and is likely to be used. In instances where the right exists but in all practical senses is just window dressing (Ackroyd) it has carried very little weight.

Unlike MOO which HMRC know is a far more likely matter to arise day to day and which they have therefore chosen to leave out of CEST as it would push far more decisions to the "outside IR35" end of the spectrum.

Use of CEST is however not (yet) mandatory and any sensible review of a potential inside/outside IR35 decision would inevitably include MOO.

That review would include all the TAX cases in which core principles were discussed and/or established. This is because IR35 is a TAX decision based in TAX law which is now very old and as such has a number of ancient cases which remain good law. Cases which are "bespoke", i.e. have a very particular set of circumstances, or which were not heard in a TAX hearing carry significantly less weight.

So a case from long ago, with special circumstances, in a non tax hearing, are interesting perhaps but are otherwise distracting and largely irrelevant in most circumstances and post April 17 became more so.

I absolutely understand that its comfortable discussing something we are all very familiar with but we are moving into new times and new thinking is required, because HMRC will be looking to cherry pick cases to achieve a "success" for the reform and leaning on old and off topic cases heard outside the tax arena is a recipe for arriving at the wrong answer.

In particular, Mr JohntheBike, we have now heard how your case remains in your view a potential route for some, in special circumstances, to add to the discussion with an end client about status for tax purposes. If I were a contractor I would be wary of telling an end client that if they decided I was inside IR35, I might go to an Employment Tribunal. If I were an end client and was told this, I think I would not be offering the post to that contractor.

The point here however, is that we've heard your view, we all agree that in some special cases it has relevance, we all agree that there are better TAX cases out there to use.

Can we all now move on - please?

"In particular, Mr JohntheBike, we have now heard how your case remains in your view a potential route for some, in special circumstances, to add to the discussion with an end client about status for tax purposes. If I were a contractor I would be wary of telling an end client that if they decided I was inside IR35, I might go to an Employment Tribunal. If I were an end client and was told this, I think I would not be offering the post to that contractor.

Note there may be two cases currently being put before the ET which have resulted from an "inside" judgement. One is the Alcock case and the other IPSE is apparently supporting.

As far as my position is concerned, I won't be having any discussions with my client prior to their assessment of my contract, even if I am still in contract in April 2020, which is not a fore gone conclusion.

I will wait for them to play their cards before I consider my options.

Facts for you to consider, I'll be 72 by the time the new regulations come in and I will have been contracted to my client for over 15 years. So I guess you don't need to use your imagination much to understand what my options might be.

[jamesbrown]

Can we all now move on - please?

20 odd years of PCG/IPSE history suggests....

NO!

JtB is basically a troll. He doesn't realise he is; he thinks he's being helpful, which is presumably why his perma-ban was overturned (i.e., he doesn't set out to **** everyone off, but it's the inevitable outcome, every single time).

If we could just get JtB and NLUK to ignore each other, that would be a start...

[JohntheBike]

20 odd years of PCG/IPSE history suggests....

NO!

JtB is basically a troll. He doesn't realise he is; he thinks he's being helpful, which is presumably why his perma-ban was overturned (i.e., he doesn't set out to **** everyone off, but it's the inevitable outcome, every single time).

If we could just get JtB and NLUK to ignore each other, that would be a start...

I've been banned by IPSE for 6 months now, I'm awaiting an answer as to why!

anyway, troll -


troll..


[trɒl, trəʊl]







NOUN.





(in folklore) an ugly creature depicted as either a giant or a dwarf.


I guess you need to find a better definition for me!